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​CVP files Petition for Writ of Mandate v MCOSD

Posted by: Bob Silvestri - June 4, 2017 - 5:15 PM PDT

On November 29, 2016, the Marin County Open Space District (MCOSD) announced that they had made the decision to open the single-track, Bob Middagh Trail to use by mountain bikers and to decommission the existing Gasline Trail and build an entirely new trail through the Alto Bowl Preserve.

On May 11, 2017, the MCOSD published documentation; including their “Project Approval,” written by staff members Jon Campo and James Raives, a “Notice of Determination,” claiming California Environmental Quality Act (“CEQA”) exemption and what they called a “Tiered Program Environmental Impact Report Consistency Assessment,” claiming that their decisions are compliant with CEQA and that work would begin immediately.

To read those three documents CLICK HERE

In response, on May 26, 2017, Community Venture Partners filed a Petition for Writ of Mandate, contesting the legitimacy of those decisions (copy of CVP’s First Amended Verified Petition for Writ of Mandate is attached). Our “Causes of Action,” which are enumerated in greater detail below, argue that

Although all of our Causes of Action are important, improper tiering from an existing "program" EIR to avoid undertaking a "project" EIR is one of the most abused and negatively impactful.

It doesn't matter if the project were about multiple-use trails, housing or installing picnic tables, the legal requirements of CEQA must be adequately addressed.

If left unchallenged, this precedent will essentially allow MCOSD to do whatever they wish in our open space without an accountable public process or adherence to CEQA.

CLICK HERE to DONATE to the CVP Open Space Legal Fund

Background

The Bob Middagh Trail and the Gasline Trails are located within the Alto Bowl Preserve, a watershed encompassing 37.1 acres, consisting of 0.77 miles of narrow trails and 0.37 miles of wide trails. The RTMP identifies the Alto Bowl Preserve as part of Region One. The RTMP makes no mention of the Bob Middagh Trail.

The Alto Bowl Preserve was formerly comprised of dairy ranches. This area has traditionally been home to abundant wildlife including deer (especially does and fawns), bobcats, coyotes, foxes, jackrabbits, at least one mountain lion, nesting Great Horned Owls, black and red-tailed hawks, migrating birds, as well as diverse flora throughout the Preserve.

As the town of Mill Valley grew in the late 1960's, a groundswell of citizen concern and broad-based, fundraising support successfully challenged the plans of developers to build on the surrounding ridges of Alto Bowl. This eventually allowed the County to acquire the area through separate purchases in 1974, 1985, and 1990. The goal was embodied in its name. It was intended to remain a sanctuary and a preserve.

In recent years, dedicated local volunteers have restored many acres of the Preserve's native habitats by waging an ongoing battle against French broom and other invasive, exotic plants.

Since the Alto Bowl Preserve became part of the District's open space lands, the Bob Middagh and Gasline single-track (narrow) trails have been used extensively by walkers, hikers and equestrians. These trails were never intended for recreational use of mountain bikers, who have a multitude of alternative options on existing fire roads and bike lanes throughout Southern Marin.

The Roads and Trails Management Plan

On December 16, 2014, the Marin County Open Space District approved the Road and Trail Management Plan as well as a Tiered Programmatic Environmental Impact Report ("Trail Plan EIR"), pursuant to CEQA. The Trail Plan does not prescribe future road and trail modification projects in specific locations, but instead presents a general framework and process for making decisions on such projects, and a set of policies to which proposed projects must adhere.

The Trail Plan contains “Guiding Principles" for making determinations, regarding which trails will be included in the District's trail system. Some of these guidelines include that impacts to the natural environment will be avoided or mitigated to acceptable conditions under CEQA, and safety will be maintained and conflicts among visitors will be minimized. The RTMP also states that the District

…may prohibit certain trail uses or apply increased trail use restrictions within certain areas to enhance safety, minimize conflicts between trail users, and protect natural resources. Examples of areas where this policy may apply include, but are not limited to, those proximate to stables and those traditionally heavily traveled by equestrians, and in Sensitive Resource Areas. See Policy SW.16

And, that the District must

…strive to prevent displacement of equestrians and pedestrians when accommodating trail access and trail connections for mountain bikers" and "[w]hen considering the designation of existing trails as single-use or priority-use, the MCOSD will take care to maintain connectivity between destinations for user groups historically using those trails. See Policy SW.17.

Proposals and public process

In 2015, the Marin County Open Space District considered proposals submitted by the public, regarding the creation of new trails, the decommissioning of existing trails, and other modifications. Of concern, during this District review process, proposals for “no project” or ones that suggested maintaining existing uses and existing use prohibitions were categorically rejected by the District, as being “un-score-able.” This appeared to many in the public, that the District already knew what changes they wanted to see and only reviewed proposals that aligned with those ideas. This was in spite of the fact that over 1,000 local residents had signed a petition against the changes desired by the MCOSD (e.g. adding biking on the Bob Middagh Trail).

Similarly, at public “workshops’ held in the summer of 2016, participants were only allowed to comment on how to change use on the Bob Middagh Trail, not whether to change use to allow mountain biking. Also, during this time, when questions regarding review under the California Environmental Quality Act were raised, the public was told that this would be addressed later in the District’s process.

MCOSD held an “informal” (their word) public comment period after the August of 2016 workshop, which ended on September 28, 2016. CVP submitted extensive commentary at that time.

On November 29, 2016, the Marin County Open Space District announced that they had made the decision to open the single-track, Bob Middagh Trail to use by mountain bikers and to decommission the existing Gasline Trail and realign it on a new route though the Alto Preserve. This decision by MCOSD was posted on their web site and was the subject of an article announcing it in the Marin IJ, on December 5, 2016.

MCOSD explained their decision on their web site as follows:

The proposal to improve and open Bob Middagh Trail to bicycle use is moving forward. A significant majority of the 400 public comments submitted favored the proposed change. Additionally, the Marin County Open Space District (MCOSD) concluded that, with the recommended trail improvements, the addition of bicycle use on the Bob Middagh Trail could be accommodated in a safe and sustainable manner, and would not have significant effects to natural or cultural resources.

This explanation for their decision was highly problematic, mostly because it was either false or unsubstantiated by the facts.

For example, in making this pronouncement, MCOSD conveniently forgot to mention that over 1,000 local residents (with names and addressed provided) had signed a petition against the decision, in addition to almost scores of long, detailed comment letters opposing the Plan, backed by studies and references, from impacted residents and every local environmental group in Marin. In addition, the majority of the supporting letters were short, often one sentence long letters from bicycle advocates, which were submitted via email and sometimes, without any way of determining where the author lived.

That said, however, this is not the main issue for CVP’s action. What is much more important is MCOSD’s claim that they

concluded that, with the recommended trail improvements, the addition of bicycle use on the Bob Middagh Trail could be accommodated in a safe and sustainable manner, and would not have significant effects to natural or cultural resources.

When CVP subsequently asked MCOSD who had made the decision and how, Max Korten wrote that the decision was made by, “Myself and staff have made the decision regarding this project.”

So, since this decision was made by staff members and behind closed doors, CVP wondered on what basis was that “conclusion” arrived at? On December 9, 2017, CVP filed a Public Records Act request asking for documentation memorializing that decision by MCOSD (meeting minutes, drafts, emails, notes, etc.).

After months of back and forth, County Counsel stated that no such memorializing documents existed. Add that to the fact that there is nothing in the original RTMP that assesses the specific impacts that might result from the Bob Middagh and Gasline Trails plans, or MCOSD’s claims about it being “safe and sustainable” or not having “significant effects” on the environment, and it would appear their conclusions were pulled out of thin air. However, the California Environmental Quality Act was specifically created to disallow exactly this kind of “decision” by government agencies.

CEQA requires evidence-based decision making, not decisions based on how many letters people wrote or the personal opinions or political leanings of staff.

Improper avoidance of CEQA requirements is the key issue at stake here.

Why improper tiering from a “program” EIR is important to contest

What MCOSD is attempting to push through, in spite of all its “public process” and “informal” listening to public comments, is the ability to base any and all future decisions about specific projects in the Open Space District (e.g. the Bob Middagh Trail) on the existing, 2014 RTMP “program” EIR. If uncontested, this would allow them to avoid any additional, project specific environmental impact assessment or analysis, for anything they want to do.

Add to this the fact that MCOSD has no established trails' safety standards upon which to base their decisions. Nor does MCOSD have any analysis of the impacts of changes of use. The National Parks Service and the California Parks Department both have conducted voluminous EIRs on this issue, in order to establish guidelines.

Attempts to improperly “tier” off of existing program EIR’s, in order to avoid recognizing and adequately analyzing the potentially significant environmental impacts of a specific project, is epidemic in Marin County and has caused some of our worst planning debacles: the most egregious example being WinCup.

WinCup was approved by the Town of Corte Madera without an environmental impact report. The Town planners simply “tiered” off of the existing General Plan “program” EIR and decided that no environmental impact analysis was required. This was in spite of the fact that the site had been used for decades to produce Styrofoam; a process which is known to both use and produce a number of EPA listed, carcinogenetic chemicals.

Similarly, Mill Valley recently attempted to rezone all commercial areas in the City to by right, mixed use, multifamily residential zoning, without any environmental review, all based on their contention that they could tier off of the existing General Plan EIR. Had this not been contested, the impacts on Mill Valley would have been enormous.

Conclusion

The potential for negative impacts from attempts to avoid an adequate CEQA process through improper tiering of projects from existing "program" EIR's could not be greater. The need to argue for strict enforcement of our environmental protection laws is paramount because bad decisions set bad precedents for other local agencies.

Regardless of what a specific project entails, the public process must always be authentic, democratic and legal. Yet, we're rapidly losing adherence to those principles in planning of all types at all levels of government in the SF Bay Area.

Unaccountable agency staff, both local and regional, are routinely usurping the powers of elected representatives and making important decisions about public policy on their own. It is important that this be challenged early and often, because in the long run it ensures better outcomes for us all.

For the reasons enumerated below (quoted from our Petition for Writ of Mandate), it is our position that the MCOSD decisions, regarding the Alto Bowl Preserve, were improper.

CVP’s Petition for Writ of Mandate

FIRST CAUSE OF ACTION

(Violation of California Public Records Act; Govt. Code §§ 6258-6259.)

Petitioner incorporates by reference the allegations in the paragraphs set forth above.

Petitioner challenges the District's failure to produce documents responsive to Petitioner's Public Record Act request for documents that refer or relate to the decision made by District staff to open the Bob Middagh Trail to biking, as discussed in the District's November 29, 2016 memo entitled "Update Regarding Pending Proposed Projects in the Alto Bowl Open Space Preserve."

The November 29 memo refers to an intra-departmental decision-making process, in which District staff and the Director of the Parks Department Max Korten made a joint determination to approve the Project based on an ostensible evaluation of Project impacts and compatibility with Trail Plan policies. However, in response to Petitioner's Public Records Act request, the District produced no documents related to this decision making process, including memos, meeting minutes or emails among the decision-making individuals.

In response to Petitioner's Public Records Act request, the District first identified five different categories under which it reserved the right to withhold document disclosure. Subsequently, the District narrowed those categories to a single ground, based on attorney client privilege. In its last response, however, the District claimed that no such documents were being withheld because no such documents exist.

In failing to provide the requested documents, the District has violated Government Code § 6253(d), which states that "[n]othing in this chapter shall be construed to permit an agency to delay or obstruct the inspection or copying of public records." Here, the District has obstructed the production of these public records, thereby violating Government Code § 6253(d).

Petitioner seeks a writ of mandate pursuant to Code of Civil Procedure § 1085 to require the District to produce all documents responsive to Petitioner's Public Records Act request, as required by law. Govt. Code §§ 6253(d), 6258, 6259.

SECOND CAUSE OF ACTION

(Violation of CEQA: Approval of Project without CEQA Review)

Petitioner incorporates by reference the allegations in the paragraphs set forth above.

The District's November 29, 2016 approval of the Project violates CEQA in that the District conducted no CEQA review despite committing itself to the Project through an administrative review, ostensible identification of mitigation measures, and final determination that the Project would not cause significant impacts.

Here, CEQA review was required because the District’s approval was a discretionary determination with the potential for significant environmental and safety impacts. The introduction of biking and accompanying physical alteration of the Bob Middagh Trail has the potential for significant impacts due to erosion, wildlife, noise, aesthetics and public safety. Further, the attendant physical change of introducing biking onto the Bob Middagh Trail will cause displacement of existing users due to the safety issues caused by the introduction of fast moving bikes trail into an area historically used by hikers and equestrians, which magnifies the significance of the physical change being approved. By failing to prepare an initial study to consider the impacts of this significant change to the environment, and failing to consider project alternatives, including the no project alternative, the District has violated CEQA. In addition, the creation of an entirely new Gasline Trail has the potential for significant environmental impacts, including changes in circulation patterns leading to increased illegal bike riding in the area that has not been assessed by the District.

Petitioner seeks a writ of mandate pursuant to Code of Civil Procedure § 1085, to require the District to set aside its approval of the Project, until such time as the District has completed the required CEQA Review.

THIRD CAUSE OF ACTION

(Violation of CEQA in Tiering Project to Trail Plan EIR)

Petitioner incorporates by reference the allegations in the paragraphs set forth above.

The District's second 'approval' of the Project on May 12, 2017 violates CEQA in its 'tiering' to the Trail Plan EIR through the preparation of the 'Consistency Assessment.'

The District's determination that the impacts of the Project need not be evaluated because it will not require substantial changes to the EIR prepared for the Trail Plan EIR pursuant to CEQA Guidelines § 15162 is contrary to CEQA. CEQA Guidelines § 15162 is only applicable in cases where there is a change to an existing project. Here, the Project is not the same project as the Trail Plan, but rather a second-tier project that is more specific than the first-tier programmatic Trail Plan evaluated by the Trail Plan EIR. As a second-tier project, the CEQA evaluation should have proceeded according to the requirements of Public Resources Code § 21094 and CEQA Guidelines § 15152, as opposed to Section 15162.

The District's determination that the impacts of the Project need not be evaluated pursuant to CEQA Guidelines § 15162 is contrary to CEQA in that the Project is not 'within the scope' of the Trail Plan EIR. See CEQA Guidelines 15168(a)(2).

The District's determination that the impacts of the Project need not be evaluated pursuant to CEQA Guidelines § 15162 is contrary to CEQA in that the Trail Plan ElR never analyzed the specific impacts of changing the use on the Bob Middagh Trail to add bike riding, which has never previously occurred. The Trail Plan's scoring system for evaluating new projects in this case does not consider a 'no project' alternative, as required by CEQA, nor does the system constitute a CEQA analysis of impacts of specific projects that were never analyzed or considered in the Trail Plan ElR. Here, the introduction of biking to, and physical alteration of, the Bob Middagh Trail has the potential for significant impacts due to erosion, wildlife, noise, aesthetics and public safety. Further, the attendant physical change of biking on the Bob Middagh Trail will cause displacement of existing users due to the safety issues caused by the introduction of fast moving bikes trail into an area historically used by hikers and equestrians, which magnifies the significance of the physical change being approved. By failing to prepare an initial study to consider the impacts of this significant change to the environment, and failing to consider project alternatives, including the 'no project alternative,' the District has violated CEQA. In addition, the creation of an entirely new Gasline Trail has the potential for significant environmental impacts, including changes in circulation patterns leading to increased illegal bike riding in the area that has not been assessed by the District nor was considered in the Trail Plan ElR.

FOURTH CAUSE OF ACTION

(Violation of Trail Plan)

Petitioner incorporates by reference the allegations in the paragraphs set forth above.

The Trail Plan sets forth a step by step procedure whereby the District assesses and scores proposed projects for consideration for funding and approval in the next funding cycle. The Trail Plan states that projects involving reconstruction or rerouting of trails will be projects that compete in the annual project review selection process. See Trail Plan, Table 5.1. The Trail Plan further describes "Inputs to the Road and Trail Evaluation Tool" covering a range of criteria. See Table 5.2.

In approving the Project, the District disqualified six proposals from local citizens groups to rehabilitate and improve the condition of the Bob Middagh Trail despite the fact that each proposal qualified as either a reconstruction or rerouting of the trail. The District rejected each of these proposals based on an unsubstantiated finding that each proposal offered 'no scoreable options" even though each proposal offered environmental benefits related to reducing erosion, protecting wildlife, improving public safety, enhancing vegetative cover etc.

In the end the only 'proposal' for the Bob Middagh Trail considered "scoreable' by the District was the proposal from the Marin County Bicycle Coalition to 1) improve stream crossings; improve sites lines and install speed control features; and 3) open the Bob Middagh Trail to bicycle use. As a result, the District never considered any project that would retain the existing use on the Bob Middagh Trail while at the same time reducing those existing trail impacts on the environment.

The District's failure to consider project proposals meeting the criteria for new projects as set forth in the Trail Plan for consideration violates the Trail Plan and results in the District never considering in a public process the option of not adding bikes to the Bob Middagh Trail while at the same time improving the environmental impacts of that trail usage. This result is arbitrary and violates the Trail Plan.


CVP Petition for Writ of Mandate (pdf 17.27 MB)